People v. Dwyer

This appeal is from a judgment convicting the appellants of the crime of conspiracy under section 580 of the Penal Law (Consol. Laws; c. 40). Nineteen defendants were jointly indicted, of whom eighteen were tried together. One was acquitted by direction of the court; four found not guilty; and the remaining thirteen, the present appellants, convicted and each sentenced to be imprisoned in the penitentiary for three months, and, in addition thereto, pay a fine of $500. The defendants were engaged in buying and disposing of poultry in the city of New York, and were indicted for having conspired to suppress competition to maintain and regulate the market price of the same. Prior to the formation of the pool hereinafter mentioned, this business was carried on in substantially the following way: The poultry was purchased by shippers, so called, from the producers ; they shipped the same to receivers, who sold it on commission, to jobbers; they sold it to slaughterhouse men, who, in turn, killed'and then sold it to the retailers. Nine of the defendants were receivers, eight of them jobbers, and two both receivers and jobbers. In June, 1906, the principal receivers of poultry in the New York market, including those who are defendants, formed the New York Live Poultry Dealers’ Protective Association. This association was formed mainly for the purpose of pooling the commissions by all of the members, to the end that the same might be divided among them in a certain proportion fixed by the articles of association. Some time

[1] This fact was not seriously disputed at the trial, or upon the argument of the appeal. It was, however, strenuously urged that notwithstanding this may have been the result of the defendants’ acts, as members of the associations referred to, nevertheless they were not criminally liable, since they had no criminal intent in what they did. One is presumed to intend the result of his own acts, and the defendants are not in a position to complain if they are judged by that standard. But the proof shows that the intent was criminal because at different times the association took combined action to destroy the business of independent dealers, whether receivers, jobbers, or slaughterhouse men, and their intent in doing so is as obvious as though specifically admitted. The formation of the joint association was one not sanctioned by law, created for an illegal purpose, and thereafter maintained by criminal methods.

[2] Bu.t it is said the judgment of conviction should be reversed for certain errors which in no way affect the merits. The principal

“If two or more persons conspire (1) to commit a crime or * * * (6) to commit an act injurious * * * to trade or commerce, * * * each of them is guilty of a misdemeanor.”

Section 340 of the General Business Law was enacted subsequent to the enactment of section 580 of the Penal Law and provides that:

“Every contract, agreement, arrangement or combination whereby a monopoly in the manufacture, production or sale in this state of any article or commodity of common use is or may be created, established or maintained, or whereby competition in this state in the supply or price of any such article or commodity is or may be restrained or prevented, or whereby for the purpose of creating, establishing or maintaining a monopoly within this state of the manufacture, production or sale of any such article or commodity, the free pursuit in this state of any lawful business, trade or occupation is or may be restricted or prevented, is hereby declared to be against public policy and void.”

And section 341 provides that every person who makes or attempts to make such agreement is guilty of a misdemeanor and on conviction shall be punished by a fine not exceeding $5,000, or by imprisonment for not longer than one year, or by both. These sections, it is conceded, do not, in terms, repeal section 580 of the Penal Law, nor in my, opinion do they do so by implication. There is no repugnancy between the two statutes. 'Each can be enforced, and each, in a measure at least, is directed towards a different act. The Penal Law forbids a conspiracy to do any act injurious to trade, while the General Business Law prohibits the creation or attempt to create a monopoly; in other words, the General Business Law prohibits the doing or attempt to do the thing itself, regardless of the question of conspiracy, and the Penal Law can only be violated by two or more persons conspiring to bring about what is prohibited in the Business Law. To establish a conspiracy under the Penal Law some overt act must be shown (section 533 Penal Law), which is not necessary under the General Business Law. It is true the same act may be a crime under both statutes, but there is nothing to indicate that the Legislature intended to substitute one for the other. Besides, the repeal of a statute by implication is not looked upon with favor. As was said in Davis v. Supreme Lodge, 165 N. Y. 159 , 58 N. E. 891 :

“The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction as almost to establish the doctrine of no repeal by implication. Where there is a difference in the whole purview of two statutes, apparently relating to the same subject, the former remains in force.”

[3] But even if it were held that section 580 of the Penal Law were repealed by the sections of the General Business Law to which reference has been made, nevertheless I think this conviction could be sustained. It is not necessary that the section of the statute under which

[4] Every fact necessary to show a violation of the Business Law was charged in the indictment under which the defendants were convicted ; such facts were established at the trial; and it does not now lie with the defendants to complain that they were not convicted under that statute instead of under the Penal Law. The Business Law provides a greater punishment and requires less proof than does a conviction under section 580 of the Penal Law, so that if the appellants’ contention were correct—which I do not think it is as to the repeal of this section—they were benefited rather than prejudiced by the conviction under the latter statute.

The conviction can also be sustained as one prosecuted under subdivision 1 of section 580 of the Penal Law as a conspiracy to commit a crime, viz., the one prohibited by the sections of the Business Law.

[5] It is also urged that error was committed in admitting in evidence certain entries in a book of account kept by the treasurer of the joint association, who was also treasurer of the receivers’ association. The book was kept by him as part of his official duties. It showed all sums received and disbursed by him as treasurer of the two associations. It was admitted in evidence, and then the learned district attorney proceeded to question the treasurer as to three specific entries. Defendants’ counsel moved to have those entries stricken from the record, which the court refused, and to which an exception was taken. I think the ruling was correct. The entries were: “End of the year. War will be declared now very soon”—which was written immediately after the regular entries for February 6, 1909. The next entry was, “Three weeks’ period of unrest,” written immediately before the entries for February 13th; and, “War is over,” written after the entries for February 27th. There is at least some evidence in the record to the effect that about this time active steps were taken by the association to stifle competition and its profits were somewhat diminished, and this the jury had a right to consider, notwithstanding the treasurer testified that the entries were meaningless, inserted by him merely as “bookmarks,” and that no one else, with the exception of his son, ever saw them. The treasurer was one of the co-conspirators. The entries were made by him in the records of the conspiracy. They were therefore admissible as against him and also against his co-conspirators. People v. McKane, 143 N. Y. 455 , 38 N. E. 950 ; People v. Miles, 123 App. Div. 862 , 108 N. Y. Supp. 510 , affirmed 192 N. Y. 541 , 84 N. E. 1117 .

[G] Finally, it is claimed the defendants did not have a fair trial by reason of the misconduct of the district attorney in making certain remarks, especially in regard to defendants’ counsel. The conduct of' defendants’ counsel was, in the main, responsible for the remarks, and defendants are not now in a position to complain thereof. Besides, the jury could not possibly have been influenced by them. It was in

Other points are raised by the appellants, but after an examination we find none of them which require consideration.

The judgment of conviction is therefore affirmed. All concur.